Chestnuts roasting on an open fire? Supervisor liability revisited.

Peter Jenkins

As therapists, we know that things are not always how they appear. This is true of the law. Seemingly solid and incontrovertible, the law is, by definition, open to challenge, re-interpretation and change. This is without necessarily accepting any of the tenets of post-modernism, ie that social reality is endlessly fluid and renegotiable. This is simply how the law works in practice. One of the characters in the classic English novel, Middlemarch puts this very well:

“But as to listening to what one lawyer says without asking another – I wonder at a man of your cleverness, Mr. Dill. It’s well known there’s always two sides, if no more; else who’d go to law, I should like to know?” (Eliot, 1994: 689).

Eliot’s character hits the nail on the head, with pithy directness. The law involves challenge, conflict and opposition. These features are derived from its essentially adversarial stance, where two sides present differing arguments and evidence. So, despite this, why, as therapists, are we seemingly tempted to see the law in purely black and white terms? This seems to apply whether the issue at stake concerns confidentiality or safeguarding, contract or liability. Legal guidance is, of course, to be highly valued in the fast-changing world of therapy. The BACP’s revised Ethical Framework (2016) provides a comprehensive framework for sound professional practice. It is underpinned by a raft of legal guidance resources, now being issued on a regular basis by BACP. It would be tempting to see these as being authoritative summaries of the complexity of the law relating to therapy.

However, for many of the issues covered by the guidance, it is possible to offer alternative views and interpretations. This may put the emphatic nature of this guidance in some doubt. This article will review some of the BACP’s guidance and offer an alternative reading of some of its key conclusions. (The article is not intended to offer legal advice as such, and should not be read in this way.) It will look in some detail at the law relating to contract and to liability, with particular reference to the vexed question of whether supervisors carry legal liability for errors made by their supervisees. It follows on from a previous article, which offered some critical perspectives on the new Ethical Framework and explored the apparent influence of external ‘drivers’ for change, such as recent healthcare scandals.

Contracting and contracts

The new Ethical Framework places an appropriately critical emphasis on the role of contracting within therapy. Contracting provides a means of negotiating the therapy on offer and tailoring it to the client’s needs, consistent with what the therapist and agency (if relevant) can seek to provide. Contracting immediately raises the question of what a legally binding contract consists of. In England and Wales, there are a number of basic requirements, which include:

At its most basic, “… a contract requires an intention to create a legal relationship for consideration [reward]” (Pattenden, 2003:100). “Simply, a contract is where one party agrees to provide something in consideration for something else from another party” (Cristofoli, 2002:24).

Mitchels and Bond confirm this, ie “What makes a contract legally enforceable? ‘Offer’, ‘acceptance’, ‘consideration’ and capacity” (2010:46). Hence the crucial role of payment (or its equivalent) in exchange for therapy – “If the fees are not clarified and agreed in advance of providing therapy, the parties have no clear legally enforceable contract, because the terms are not yet settled” (2010: 48).

But while payment is crucial, it is not necessarily the sole, or determining, factor in contract law. What happens if therapy is provided for free? Mitchels looks at case law for the answer. “A valid contract may also exist in law, even if the counselling is provided free of charge, for example by a volunteer counsellor (see Gore v Van der Lann [1967] …)” (Mitchels, 2015:6). “Based on Gore, one wonders if, provided that both parties intend the relationship to be contractual, in situations where the therapy is provided free, the courts might hold that there is legally binding therapeutic contract if the client has to do something to obtain the service, e.g. filling in a form, attending the counselling sessions regularly, etc” (Mitchels and Bond, 2010:49). However, the judge’s conclusion in this obscure and rather atypical case emphasises the importance of the plaintiff lay not just in their completing some paperwork, but that the completed application form provided evidence of a clear intention for both parties to to enter into a legally binding agreement. If an unpaid counsellor or counselling agency has no intention of setting up and agreeing a legal contract with the client, then it seems unlikely that such a legal contract would be held to apply by the courts.

Differences between legal and therapeutic contract

The question of whether free therapy requires a legally binding contract is picked up in other guidance, by Dale. This explores the process of setting up a contract with a client in the form of a case study. The focus is initially on how to set up a legal contract, explicitly for use in a private practice setting. However, Dale goes on to define a contract in such a broad way that it potentially includes anytherapy provided for free, and is no longer restricted to therapy provided in exchange for payment. The key factor of consideration, or what one legal dictionary defines as a ‘quid pro quo’ (Saunders, 1985:74), morphs into something new and quite different, which she refers to as ‘mutual consideration’. Hence, as part of this central process of exchange, she suggests that the therapist derives an advantage. “This may be money or it may be collecting hours for coursework, or towards accreditation, or the fact that going to a place of work during the week offers something that the practitioner considers valuable” (2016:6). Therapy provided in exchange for payment is one thing; however, arguing a case that volunteering per se, as a counsellor, can constitute an element of a legal contract is quite another. Dale seems at risk of confusing the volunteer counsellor deriving a personal benefit (ie increasing their counselling hours for accreditation, or for course work purposes) with the key process of entering into a legally binding agreement to exchange benefits (eg therapy for payment). If her argument is correct, then any unpaid telephone counsellor for Samaritans, or any volunteer at a Citizen’s Advice Bureau, would be covered by the law of contract on the same basis. Both of these latter situations seem extremely unlikely, given the basic requirements of contract law outlined earlier.

This discussion may seem very abstract and removed from the real world practicalities of therapy, but there is an important principle at stake here, namely of defining a legal contract for therapy in the appropriate manner. There does appear to be something of a developing trend here in the guidance of adopting the legal contract, which is applicable to private practice, as the standard default template for all therapeutic work, even where no payment is involved. The private practice model then encompasses all counselling, whether carried in non-commercial settings, such as schools, colleges, prisons and the NHS, or within voluntary organisations which provide therapy on a free basis. (The increasing practice of clients being asked for voluntary contributions to many third sector agencies is not discussed here, in order to avoid over-complicating the argument). In fact, the reverse case can be argued much more strongly and convincingly, namely that private practice probably constitutes only a minority of the counselling provided in the UK. In the absence of a definitive scoping survey, we might estimate that the vast majority of counselling is currently provided on a non-fee paying basis. It therefore falls outside the provisions of a legal contract, in the narrowly defined and generally accepted legal sense. Hence, “Many professionals, including the clergy, social workers, teachers in state schools and health professionals working for the NHS are not paid by the people they help and therefore have no contractual relationship with them” (Pattenden, 2003: 100, emphasis added: PJ). Logically, this exemption would therefore also apply to the vast majority of therapists, who are not involved in private practice.

Legal contract or working agreement?

At this point, it may be worth revisiting the traditional distinction, often made in counselling literature in the past, between a legal contract and a ‘working agreement’ (Egan 1998; Jenkins, 2006). A working agreement will necessarily have some important legal aspects to it, but without then constituting a legal contract as such. A working agreement could refer to the agreed limits to confidentiality and obtain advance client consent for the therapist to contact specific third parties, such as a GP, safeguarding agency or parent, in the case of a perception of a heightened risk to the client. A working agreement could also refer to data protection compliance, again without necessarily constituting a legal contract as such. Some of the suggested overlap and distinctions between a working agreement (after Egan) and a legal contract (ie for the provision of therapy in exchange for payment) are set out below in Table 1.

Table 1: Comparison of main features of a working agreement for therapy and a legal contract.

This is not intended to be completely comprehensive, or to provide a model as such, but simply to illustrate some of the main differences between a working agreement between therapist and client, and a contract, which is intended to be binding at law on both parties. This traditional distinction between a working agreement and a legal contract is, interestingly, specifically acknowledged in some of Bond’s early writings on the subject: “Legally, making a contract with fee-paying clients is a wise precaution” (Bond, 1992: 204). This suggests a clear and necessary distinction between fee-paying and non fee-paying clients, which would be consistent with the approach outlined above.

Contracts in a training context

Mitchels goes on to explore the range of contractual relationships, which can apply in the context of therapy training (see Diagram 1: Potential contractual relationships for trainee counsellors).

Diagram 1:

(reproduced by kind permission of BACP)

Within this matrix, clearly recognisable to most therapy trainers, Mitchels suggests a complex web of potential contractual relationships. However, a revised version of the same diagram might suggest quite a different picture, where the legal (or paying) contracts are basically limited to those between the trainee and the training institution, and between the trainee and the supervisor (see Diagram 2 reproduced with permission).

According to this revised diagram, the remaining relationships are better understood simply as working agreements, without any status as legally binding contracts. This might be illustrated by a recent email injunction at one university, forbidding all staff from buying packets of biscuits to eat at team meetings. This was to avoid the prospect of potential litigation by any staff with allergies, etc, being launched against the institution. If a university has such an overwhelming fear of liability and of the spectre of ensuing litigation over the purchase of Hobnobs, it does seem somewhat unlikely, in today’s litigious society, that they would allow counselling trainers to run up vast and unknown amounts of legal liability by allowing them to enter into legally binding contracts with potentially dozens of counselling placement providers.

Supervisor third party liability

So, has the law changed much, or even at all, with regard to contract? There are some factors which do need to be acknowledged. For example, consideration is not a requirement under Scots law (Stewart and Burgess, 1996: 97). Also, there has been much discussion about the UK moving towards a form of contract law which is more closely harmonised with European law, although how this project will fare post-Brexit now seems to be somewhat uncertain (Koffman and MacDonald, 2010: 7). This question, of changes in the law, is raised by one BACP member asking for clarification with regard to the perennial vexed issue of supervisor liability. Musgrave, in a letter to Therapy Today, queries the BACP’s apparent new concern about potential supervisor liability, pointing out that “the legal opinion upon which, apparently, it is in part predicated has to be taken on trust and has not been made available” (2014: 41). Bond responded in the same issue: “It isn’t that the law has changed but that some lawyers are starting to draw supervisors into some types of cases that concern their supervisees” (2014: 43). However, Bond’s response does not clarify whether these are civil cases (ie relating to contract or to tort/professional negligence), criminal cases, statutory regulatory cases, (eg BPS or HCPC) or professional disciplinary cases (eg BACP, UKCP, BABCP).

By a gradual process of osmosis, this shifting perspective on supervisor liability is in danger of being transmuted into received and unquestioned professional opinion. Hence Palmer writes that “The legal position is also changing in how supervision of counselling is viewed by the legal profession” (2015: 22). She continues “…in the light of changes in the legal view where the supervisor could be called to account for the supervision given…the supervisor is also accountable to the client for the supervision offered, as this could be challenged in court” (2015: 23).

Changes to the law?

However, without specific examples or actual case law concerning supervisor liability, this must simply remain as speculation at this stage. The issue of supervisor legal liability to their supervisee’s clients is something of an old chestnut which has been fiercely debated in the past (the arguments proposing this include: Griffin, 2001; Leonard and Beazley Richards, 2001; and a critique: Jenkins, 2001; 2006a; 2006b; 2007). So, has the law changed significantly in this respect? Well, as a solicitor might say, in true lawyerly fashion, yes and no…There have been some changes to the concept of ‘privity of contract’. Privity of contract meant that a third party could not take legal action to enforce a contract to which they were not a direct party. This position has changed with the Contracts (Rights of Third Parties) Act 1999 (Andrews, 2001). Again, while the law has changed, it is difficult to see how this change to contract law would apply, in practice, to the rights of clients to bring action against a supervisor. This law has now been in force for almost twenty years – the apparent lack of supervisor case law might suggest that it actually has limited practical relevance for supervisors.

Another way of exploring supervisor liability might be to unpick the relevant case law, which might offer some new perspectives. The legal system in England and Wales is very conservative and has been slow to extend the boundaries of professional negligence law to allow third parties the grounds to sue. To try to explain third party liability, essentially this can apply where A does something to B, which affects C (the third party). In counselling terms, this would relate to a supervisor (A) providing negligent supervision, eg by encouraging his or her supervisee (B), to apply potentially dangerous therapy to the latter’s client (C), which then causes the client physical, emotional, or financial harm. Client C then seeks to sue Supervisor A for professional negligence to the client as a third party.

The legal expression of liability is via the term, frequently misused by some counsellors, ‘duty of care’. Duty of care has both an ethical and a legal meaning. In ethical terms, a supervisor has a clear duty of care to the supervisee’s client, in order to avoid, or minimise, harm to the client, by intervening if necessary. In terms of negligence law, unlike some situations in the US, a supervisor in the UK does not currently have a legal liability, or a duty of care, to the supervisee’s client. One major review of the law concludes that “…the current law on third party liability is unstructured, unprincipled and incoherent” (McIvor, 2006: 1). The law might change to incorporate the principle of supervisor liability to clients, although this is not inevitable.

Unpicking the case law

Again, the case law is very limited here, in terms of its applicability to the supervision of counsellors. Mitchels cites the main relevant case, Phelps v Hillingdon Borough Council. In this case, an educational psychologist was successfully sued by a young woman. The case alleged that there had been a failure to carry out an appropriate assessment for dyslexia as a potential cause of her continuing poor academic performance at school. This was a case of alleged third party liability, in that the educational psychologist (A) was judged to have been negligent in her professional practice with regard to (B), the school and Local Education Authority, with damaging consequences for the young person concerned (C).

Like all case law, it is complex and somewhat hard to apply to other unrelated circumstances. Whether or not A owes a legal duty of care to C depends on whether there is a ‘sufficient nexus’, or connection, between them to warrant it. It also depends on whether it would be appropriate in terms of public policy (ie ‘fair, just and reasonable’) for the courts to impose such a duty on the professionals concerned. One possibly overlooked but critical factor in the Phelps case is that the educational psychologist did carry out a face-to-face meeting and assessment with the young person concerned. An alternative reading of the Phelps case would therefore suggest that this is not at all about an indirect duty of care to a third party (for example a school pupil, a supervisee’s client, etc). It is simply a case of whether a professional (here, an Educational Psychologist working in a statutory agency (LEA)), has a direct duty of care to the pupil, whom they are alleged to have wrongly assessed. And, just in passing, there is absolutely no hint here of the need for the Educational Psychologist to have made a contract of any kind with the pupil…

Supervisor liability under negligence law?

In the BACP Guidance document on supervision, Mitchels clearly states that the supervisor owes a duty of care to clients: “The supervisor does owe a duty of care to the supervisee’s clients…both in the law of contract and under the law of tort” (Mitchels, 2015: 6). However, drilling down into the detail of the relevant case law tells a different story, or, at least, permits an alternative and less pessimistic reading. Mitchels seems to qualify her initially broad brush statement about supervisor third party liability and then concludes by acknowledging the substantial legal difficulties which can arise, in practical terms, for those clients who might be considering legal action against their own therapist’s supervisor (2015, 6; 12; 13; 15).

Supervisor liability for negligent advice?

However, there is yet another, and possibly final, route for exploring potential legal action against supervisors. Mitchels explores this route, on the grounds of a supervisor providing inadequate or misleading advice, by referencing Page and Wosket (1998: 22). However, it needs to be said that the latter’s reference to supervisory advice-giving is an extremely rare concession in the now very extensive academic writing on the functions of supervision. Advice-giving does not feature at all in the index of most established discussions of the function of supervision so this is quite atypical of the generally accepted academic and research literature on this topic.

However, Mitchels goes on to build on this possible avenue of legal liability for supervisors:”…a supervisee may implement any guidance…it is possible that a legal cause of action …may result…” (2015: 16). This argument derives from the standard case of Hedley Byrne, which concerned a professional, whose primary role was to give financial advice. In contrast to this approach, there is an alternative and well-established view, which acknowledges supervision simply as a form of professional consultation. “Supervision of therapists is a specialised form of professional consultation, which is distinct from both advice-giving and from direct line-management responsibility for an employee’s work” (Jenkins, 2007: 90). If there is a potential legal vulnerability of supervisors, on this issue of giving negligent or faulty advice to their supervisees, fortunately, it is one which can be all-too-easily remedied. It would involve no more than a simple restatement of the old BAC Code (1992). This stated: “2.2.2 Counsellors do not normally give advice (1992: 3). A parallel statement to the effect that “Supervisors do not normally give advice”, or even, better still, “Supervisors do not give advice”, without the inclusion of the word ‘normally’, would plug this legal loophole and hopefully reduce the possibility of litigation against supervisors on these rather limited grounds.

Evaluating legal guidance for therapists

So what are the problems associated with the growing raft of legal guidance on contract and liability? Indeed, where’s the fire that all this guidance is designed to put out, or is it just smoke from the hearth?

One of my main concerns relates to a gradual process of the ‘legalisation of therapy’. As therapists, we need to have a good working knowledge of the law relating to our practice. However, there is a danger that this will become an increasingly technical discourse, which therapists will feel unable to challenge, even as their practice is redefined in subtle, and not-so-subtle, ways. The elision, or confusion, of legal contracts with traditional therapeutic working agreements with clients seems to bear this out, as a private practice template and ethos are then imported into non-fee-paying contexts. Running parallel to this process, the traditional perspective, of the limited liability of supervisors to their supervisee’s clients, is being reframed, on the basis of limited practice evidence and a very particular reading the available case law.

This would seem to correspond with the increasing specific weight of lawyers within professional therapeutic associations and with their growing influence on therapeutic practice. Maybe, to redress this, we should insist that, for each new lawyer appointed within therapists’ professional associations, there should be an equivalent appointment of a therapist, to work with the Law Society, Bar Association, or Crown Prosecution Service? More seriously, the increasing weight of legal guidance within therapy seems to be reflected in two apparently contradictory processes. On the one hand, there is an apparent marked and unquestioned shift towards a statutory model of risk-management and information-sharing within therapy: (“All therapists should comply with child protection law …” Mitchels and Bond, 2015: 160). This trend contrasts sharply with the present tilt, towards encapsulating as much therapeutic practice as possible within an overly inclusive ‘private practice’, or legally contractual, model. Perhaps what both trends have in common is the theme of greater control by professional associations, over the fine detail of our day-to-day therapeutic practice, as practitioners.

Tudor and Worrall express the concerns held by many therapists very well, in my view:

“If, as trainers and supervisors, we frighten trainees and practitioners, we only encourage them to be scared and defensive. If we discourage free-thinking and independence, we encourage overadaptation and dependence. If we don’t trust them, they won’t trust themselves – or us. If we do not encourage reflective practice or reflective practitioners, we encourage students and supervisees to look to external authority” (Tudor and Worrall, 2004: 93).

Finally, to return to the hapless Mr. Dill, from the opening paragraph. There are always multiple possible readings of the law. As therapists, we need to retain our tolerance for uncertainty, ambiguity and entertaining a plurality of meaning and interpretation, even when it comes to understanding the law, as applied to our work with clients.

Peter Jenkins has published widely on legal and ethical aspects of therapy. His latest book is Professional Practice in Counselling and Psychotherapy: Ethics and the Law, to be published by Sage in March 2017. peter.jenkins@alumni.manchester.ac.uk